After 6 years, the work of the Rethinking SLIC* Expert Group culminates in an edited volume as the first comprehensive book on secondary liability across international human rights, criminal law, civil law, and State responsibility. In a final conference before the publication of this volume, the project members presented their preliminary findings to a diverse audience ranging from professors, lecturers, PhD and LLM candidates to legal advisers and practising lawyers. Hosted at the University of Amsterdam, these critical and fruitful discussions allowed for an exchange of expertise and ideas to develop further and contribute to the chapters of the six working groups. In this blog, we reflect on some key discussions during this conference.
Theoretical foundations of secondary liability
Joined by Prof. Harmen van der Wilt and Dr. Klaas Rozemond, we commenced with the first session focusing on the theoretical foundations of secondary liability. Central to the discussion was the relationship between primary and secondary liability, particularly concerning collective entities and agencies. Our panellists delved into pertinent questions regarding the allocation of responsibility to those genuinely accountable and the extent to which State responsibility can be imposed for punitive purposes based on deontologist, retributivist, and consequentialist theoretical approaches as a justification for secondary liability. The outer limits of secondary liability arising from these theoretical underpinnings have proven to be of great importance in addressing secondary liability questions in the conflicts we see today. As we finalize this chapter, it is imperative to integrate these contentious issues into the broader analysis of the theoretical framework of secondary liability.
International human rights law and secondary liability
The second panel discussed the outer limits of secondary liability through the lens of State obligations arising from international human rights law. Our panellists, Dr Annick Pijnenburg and Dr Claire Methven O’Brien advocated for the dissolution of the dichotomy between civil and political rights and economic, social, and cultural rights and emphasized the importance of contextualizing and interlinking the concept of secondary liability in international human rights law. They highlighted the necessity of international enforcement of remedies for individuals and the principles to combat impunity as well as the significance of distinguishing between State and private actors in determining the scope of State obligations. Including specific scenarios and drawing out how relevant principles will apply may assist in implementing secondary liability through international human rights law.
Secondary liability in criminal and civil law
The third and fourth working groups examined secondary liability within the realms of criminal and civil law across various jurisdictions. The panels were joined by Kristin Rosella, Dr Lachezar Yanev, Channa Samkalden, and Richard Meeran, who shared their practical experiences in litigation and related them to the findings of the working groups. Our panellists discussed the absence of a general principle for the domestic criminalization of international or mass atrocity crimes, highlighting the challenges of translating war crimes, for instance, into domestic offences. This criminalization is particularly pertinent with the emergence of actors such as banks and financial institutions, which may significantly aid in the commission of international crimes. The experience of our speakers engaged in multiple cases against multinationals for human rights violations underscored the importance of international private law and highlighted the differences between various legal systems. While corporate liability often arises through the tort of negligence or vicarious liability, some jurisdictions apply specific principles regarding participation in conspiracy or abetting and instigating offences. Further exploration of these legal system differences could provide a more comprehensive understanding of what role secondary liability should play.
State responsibility for complicity
In this session, we were joined by Prof. André Nollkaemper and Dr. Nataša Nedeski from the University of Amsterdam. State responsibility has traditionally been viewed as an inherently independent form of responsibility. However, State responsibility for complicity, which is derived from a principal wrongful act by another entity, deviates from this principle, as exemplified by Article 3(e) of the Genocide Convention (complicity in genocide). In this context, broad due diligence obligations exist, but certain types of assistance may exceed mere failures to fulfil these obligations, giving rise to responsibility for complicity. Key contentious issues in the broader debate on complicity include the requirements of knowledge or intent. The material scope of complicity requirements has been under investigation in the 2024 application brought by Nicaragua against Germany, which, among other issues, questions the consequences of Germany suspending its funding to the UNRWA. Here, a central issue is whether the acts giving rise to complicity involve factual acts or only significant contributions. Moreover, State complicity in the conduct of non-State actors urges us to reflect on the different ways in which the law can or should regulate such complicity, for example, through primary rules or alternative approaches.
Secondary liability and due diligence
The final panel discussed the concept of due diligence in the context of secondary liability, focusing on preventing entities from (negligently) contributing to severe human rights violations and establishing accountability when they do. Dr. Lucas Roorda and Dr. León Castellanos-Jankiewicz joined us for this session. The debate on corporate due diligence centred on the recent Corporate Sustainability Due Diligence Directive (CSDDD). While the CSDDD has been welcomed by many, panellists expressed concerns about its effectiveness in defining and assessing the liability of corporate actors, particularly within broader supply chains by focusing instead on liability for directly caused violations. Moreover, the panel underlined the need to explore State due diligence in relation to other State obligations resulting from primary rules, considering international jurisprudence as well as the rules on State responsibility.
With this, we thank the panellists for their insightful reflections on our draft chapters and their invaluable feedback, as well as the audience for their participation and contributions. It was a pleasure to host you at the University of Amsterdam! As we enter the final months of the Rethinking SLIC research project, we look back on a productive concluding conference. Stay tuned for the project's open-access publication with Cambridge University Press in 2025!
